GOP carrying substantial fight into November

March 27, 2010

Freedom New Mexico

This viewpoint, which reflects those of Freedom Communications, was written by the editorial staff at the Orange County (Calif.) Register.

The attorneys general of at least 14 states have filed challenges to various provisions of the massive health care bill passed by Congress and signed by the president. It is unclear yet exactly which challenges will be included in what is likely to become a final consolidated challenge. But several constitutional arguments against certain aspects of the bill are worthy of consideration.

The most significant challenge is likely to be to the individual mandate, requiring every American to purchase a government-approved product from a private company. Beyond the irony that President Obama’s closing argument demonized health insurance companies even as he was touting legislation that would force everybody to buy their products, this is an unprecedented government dictate with severe constitutional problems.

The Constitution, in Article I, Sec. 8, lays out a list of enumerated powers granted to the federal government, and the power to force residents to buy a certain product is not to be found there. The Commerce Clause refers to interstate commerce, whereas the purchase of insurance (arguably in defiance of the Commerce Clause) ordinarily takes place within a single state. You would have to stretch the authorization to tax and regulate beyond recognition to find the power to force people to buy a particular product.

Some states will also no doubt argue that requiring state government to set up insurance exchanges is an unconstitutional incursion on legitimate state rights and prerogatives.

No matter how cogent the argument, however, federal courts are often reluctant to overturn decisions by the “political” branches of government (as if the courts were not political!) if there is even a modestly respectable argument that an act is constitutional — unless the courts and judges have political cover. It is a simple fact that if Republicans make significant gains in November on the strength of arguments against ObamaCare, the courts will look more favorably on arguments about constitutionality.

So opponents of ObamaCare will have to operate on two tracks in the coming months — a litigation track and a political track.